Limitation of Actions Consultation - Law Commission

13.173 Moreover, laches has historically performed a useful role in relation to equitable
remedies and one might take the view that there is no compelling practical reason
to remove this traditional weapon in the discretionary armoury of the court. It
ensures that judges have a continuing flexibility to achieve finely-tuned justice in
relation to equitable remedies. It may also be thought difficult to separate
acquiescence from laches.
13.174 It may further be argued that, even if there is no good reason to preserve laches in
respect of monetary remedies (that is, equitable compensation and an account of
profits should be subject to the same limitation regime as common law damages)
the draconian nature of equitable specific remedies (for example, specific
performance or injunctions) means that the courts should retain their discretion to
refuse them after shorter periods than would otherwise apply. Certainly in the
19th century delays of more than a few months were thought unacceptable in a
claim for specific performance. 245
13.175 If one were to take the radical view that the approach to delay for common law
and equitable remedies should be assimilated by removing laches, one qualification
that would have to be made is in relation to interlocutory relief (for example,
interlocutory injunctions). In relation to interlocutory relief any delay by the
plaintiff in applying for the interlocutory relief (and whether before or after the
issue of a writ in the main action) generally precludes the interlocutory relief
sought. Certainly we would not want to disturb the present law requiring a
plaintiff to act expeditiously if he or she wishes to be granted interlocutory relief. 246
At the very least, therefore, we consider that the doctrine of laches must continue
to apply to applications for interlocutory relief.
13.176 We ask consultees which of the following three options, if any, they prefer.
In each, by laches we do not mean to include either acquiescence, or delay
in prosecuting, rather than instituting, an action.
(1) Option 1: Laches should not apply to final equitable remedies
where the relevant cause of action is governed by the core regime
but should continue to be relevant to applications for interlocutory
relief (for example, interlocutory injunctions).
(2) Option 2: Laches should not apply to (final) equitable monetary
remedies where the relevant cause of action is governed by the core
244 See New Zealand Law Commission, Report No 6, Limitation Defences in Civil Proceedings,
NZLC R6 (1988), paras 335 - 337 and Ontario Limitations Act Consultations Group,
Recommendations for a New Limitations Act, Report of the Limitations Act Consultations Group,
(1991).
245 See, eg, Pollard v Clayton (1855) 1 K & J 462; 69 ER 540 (11 months); Huxham v Llewellyn
(1873) 28 LT 577 (5 months); Glasbrook v Richardson (1874) 23 WR 51 (31/2 months). Cf
Lazard Bros & Co Ltd v Fairfield Properties Co (Mayfair) Ltd (1977) 121 SJ 793 (delay of 2
years did not bar claim for specific performance).
246 Nor is anything we here propose intended to alter the law that a plaintiff’s failure to apply,
or delay in applying, for an interlocutory injunction can be relevant - albeit not a necessary
bar - in deciding whether to grant a final injunction. See, eg, Wrotham Park Estate Co Ltd v
Parkside Homes Ltd [1974] 1 WLR 798; Oxy Electric Ltd v Zainuddin [1991] 1 WLR 115.
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